NG KAM CHUEN v. THE COMMISSIONER OF POLICE

1997 A.L. No. 92

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

____________

____________

_______________

J U D G M E N T

_______________

The Finding of Guilt

1. The Applicant joined the police force in April 1980. He got into debt. Eventually he was charged with failing to be prudent in his financial affairs, whereby his efficiency as a police officer was impaired. That charge was based on General Police Order 6-01(8), which reads:

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

The Applicant was found guilty of the charge by a disciplinary tribunal, and that finding was subsequently confirmed. In this application for leave to apply for judicial review, the Applicant seeks to challenge the initial finding of guilt, and the subsequent confirmation of that guilt by the adjudicating officer and thereafter by a senior police officer.

2. The charge which the Applicant faced required proof, not merely that he had failed to be prudent in his financial affairs, but also that that failure had impaired his efficiency as a police officer. That is not in dispute. What is in dispute is (a) whether the disciplinary tribunal, and subsequently the various officers who confirmed the tribunal's finding, misunderstood how that latter ingredient of the charge had to be proved, and (b) whether GPO 6-01(8) is compatible with the Bill of Rights.

3. Impairment of a police officer's efficiency as a result to his failure to be prudent in his financial affairs can be proved in a number of ways. A literal reading of GPO 6-01(8) permits it to be proved by proof of serious pecuniary embarrassment however caused. On that construction, serious pecuniary embarrassment is expressively treated as a fact which impairs a police officer's efficiency. That was how the adjudicating officer construed GPO 6-01(8).

4. Ms. Margaret Ng for the Applicant contended that that is not the proper construction of GPO 6-01(8). There may be many cases in which a police officer's efficiency would not in fact be impaired by serious pecuniary embarrassment. It cannot have been intended, therefore, for impairment of a police officer's efficiency to be conclusively and irrebuttably presumed, simply because the officer had suffered serious pecuniary embarrassment. To construe GPO 6-01(8) in that way, she said, would result in police officers facing disciplinary charges even when there was no concern about their efficiency, and would undermine the sensible policy of encouraging police officers with financial problems to come forward and seek help. Accordingly, she contended that, on its proper construction, GPO 6-01(8) merely permitted serious pecuniary embarrassment to be treated in an appropriate case as a fact from which impairment of a police officer's efficiency might be inferred.

5. I do not think that it is arguable that GPO 6-01(8) can be construed in the way Ms. Ng suggested. Her argument involves reading the words "is regarded" as "may be regarded", or the word "impairs" as "could impair". There is no compelling reason why the words used do not mean what they say. Serious pecuniary embarrassment inevitably causes stress, not only because of the embarrassment itself, but also because it could lead to disciplinary action. That stress is bound to have some impact on a police officer's efficiency. But since it may not be possible to prove that by direct evidence, some other means of proving it had to be found. GPO 6-01(8) does no more than permit indirect proof of the obvious when direct proof is not available. The link between serious pecuniary embarrassment and impairment of an officer's efficiency is sufficiently obvious to justify the conclusive presumption that the former results in the latter. If a police officer is convicted of contravening GPO 6-01(8) despite there being no direct evidence that his efficiency has been impaired, that is a factor which can be taken into account in the determination of the appropriate disciplinary sanction.

6. In addition, Ms. Ng argued that this construction of GPO 6-01(8) - equating serious pecuniary embarrassment with the impairment of a police officer's efficiency - was incompatible with Art. 14 of the Bill of Rights, which prohibits anyone from being "subjected to arbitrary or unlawful interference with his privacy". I do not believe that to be arguable. Even if an investigation of a police officer's personal financial affairs could amount to an interference with his privacy, I do not see how that interference could be described as arbitrary. The reason for it must be the need to maintain the integrity of the police force, and the confidence of the public in the probity and reliability of police officers.

7. For these reasons, the application for leave to apply for judicial review of the finding of guilt, and the subsequent confirmation of that finding, must be refused.

The Punishment

8. The senior police officer decided that the Applicant should be compulsory retired from the police force. That decision was reviewed by the Force Discipline Officer. He decided to vary the decision of the senior police officer to one of dismissal from the police force. The Applicant appealed to the Commissioner of Police, but the Commissioner dismissed his appeal. The Applicant seeks leave to apply for judicial review of the decision to dismiss him from the police force and the decision to require his retirement. I give leave for these decisions to be challenged on two grounds only: (i) that the Commissioner should have given reasons for dismissing the Applicant's appeal; and (ii) that the decisions (a) to require the Applicant to retire from the police force, and (b) to dismiss him from the police force, were Wednesbury unreasonable. In reaching that conclusion, I have had in mind the reasoning of the Court of Appeal in Ng Wai Sang v. The Commissioner of Police (CA 79/97).

Costs

9. The order nisi which I make as to costs is that the Applicant's costs of the application for leave to apply for judicial review be reserved, but that there be no order as to the costs of the hearing on 17th November. Apart from being given leave to apply for judicial review of the decision to require his retirement from the police force, the hearing did not result in the Applicant obtaining a more favourable order than that which I was minded to make on a consideration of the papers.